Citation Nr: 21005309 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-41 452 DATE: February 1, 2021 ORDER Entitlement to revision of a July 1981 rating decision on the basis of clear and unmistakable error (CUE) is granted, and the July 1981 rating decision is revised to reflect a grant of entitlement to service connection for tinnitus and left ear hearing loss. The appeal of the claim for an effective date earlier than October 26, 2016 for the award of service connection for bilateral hearing loss is dismissed. The appeal of the claim for an effective date earlier than October 26, 2016 for the award of service connection for tinnitus is dismissed. FINDINGS OF FACT 1. The statutory and regulatory provisions extant at the time of the July 1981 rating decision that denied service connection for tinnitus and left ear hearing loss were incorrectly applied to the record as it existed then, resulting in an undebatable error, the sort which, had it not been made, would have manifestly changed the outcome of the decision. 2. In January 2021, after certification of the appeal to the Board and prior to the promulgation of a decision, the Veteran requested that the appeal of the claims for an effective date earlier than October 26, 2016 for the awards of service connection for bilateral hearing loss and tinnitus be withdrawn. CONCLUSIONS OF LAW 1. The criteria to establish CUE in the RO's July 1981 decision that denied service connection for tinnitus and left ear hearing loss have been met. 38 U.S.C. §§ 5109A, 7105(c); 38 C.F.R. §§ 3.104, 3.105. 2. The criteria for withdrawal of the appeal for effective dates earlier than October 26, 2016 for the awards of service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to January 1972 in the United States Army, with service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned during a virtual hearing. While a transcript of that recent hearing has not yet been finalized and incorporated into the electronic claims file, as the CUE claim adjudicated below is being granted in full, and the remaining claims have been withdrawn from appeal, there is no prejudice to the Veteran in proceeding with adjudication. 1. Entitlement to revision of a July 1981 rating decision on the basis of CUE is granted, and the July 1981 rating decision is revised to reflect a grant of entitlement to service connection for tinnitus and left ear hearing loss. In February 1981, the Veteran filed an informal claim for service connection for tinnitus and/or hearing loss. He reported hearing a constant ringing noise in his left ear since service discharge. In April 1981, a VA examination was conducted. The examiner reviewed pertinent documents in the claims file, and examined the Veteran. He noted the Veteran’s subjective reports of left ear hearing loss and constant, high pitched tinnitus since service. He additionally noted the Veteran’s exposure to hazardous noise in service, including from firearms, and the lack of any history of post-service occupational noise exposure. On clinical assessment and diagnostic testing, the examiner diagnosed high frequency sensorineural hearing loss of the left ear, as well as tinnitus. The examiner opined that the Veteran’s hearing loss was probably noise-induced, and his tinnitus was probably secondary to his hearing loss. In a July 1981 rating decision, the RO denied service connection for left ear hearing loss and tinnitus. The RO noted that the Veteran had been employed as a Wisconsin state patrolman since 1975. The RO found that the left ear hearing loss and tinnitus were not shown to be incurred in or aggravated by service. The Veteran was notified of the July 1981 decision and of his appellate rights, but he did not initiate an appeal of the rating decision. There was no new and material evidence pertinent to the claims received within one year of the issuance of the decision. The Veteran now seeks to vitiate the finality of the July 1981 rating decision via CUE. The Board cannot consider the matter of RO CUE issue in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326 (2006). Here however, the RO adjudicated the matter of whether the RO’s failure to award service connection for left ear hearing loss and tinnitus in the July 1981 decision constituted CUE in the January 2017 rating decision on appeal. The Court has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Judicial precedent has consistently stressed the rigorous nature of the concept of CUE. “Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has further stated that a CUE is a very specific and a rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. at 313 (en banc). An assertion of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a); 3.400(k). At the time of the July 1981 rating decision, the law provided that service connection was warranted for a disability resulting from a personal injury suffered, or a disease contracted, in the line of duty, or for aggravation of a preexisting injury suffered, or disease contracted, in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. The relevant laws and regulations referable to claims to establish service connection were essentially the same in 1981 as they are today. Rating decisions issued prior to February 1, 1990 were not required to specify the evidence considered or the reasons for the determination because 38 U.S.C. § 5104(b) (2017) had not been promulgated. For CUE claims challenging RO decisions dated from prior to February 1, 1990, the Board must analyze the evidence that was before the RO at the time of the decision and determine whether the RO’s decision was supported by the evidence. Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005). A “failure to mention evidence in a decision prior to February 1990 does not mean that the evidence was not considered.” King v. Shinseki, 26 Vet. App. 433, 438 (2014). To qualify as CUE, there must be some indication in the decision that a specific fact was not considered, such as an explicit denial that a piece of relevant evidence existed. Id. at 438-39. “To establish CUE based on the failure to consider a particular fact or law, ‘in a pre-February-1990 RO decision, it must be clear from the face of that decision that a particular fact or law had not been considered in the RO’s adjudication of the case.’” Evans v. McDonald, 27 Vet. App. 180, 188-89 (2014) (en banc) (citing Joyce v. Nicholson, 19 Vet. App. 36, 46 (2005)). At the time of the July 1981 rating decision, the Veteran clearly had current tinnitus and left ear hearing loss, as documented in the April 1981 VA examination report and as acknowledged by the RO. Additionally, the RO found that he had been exposed to hazardous noise in service. As such, the matters of a current disability and the in-service incurrence of an injury were not in dispute. The claims for service connection failed due to the lack of a nexus between these audiological disabilities and service. As noted in King, 26 Vet. App. at 438, CUE may be found where there is some indication in the decision that a specific fact was not considered, such as an explicit denial that a piece of relevant evidence existed. Here, in the July 1981 rating decision, the RO did not consider the fact that the Veteran’s only source of hazardous noise exposure was military service. In this regard, the April 1981 VA examination report unambiguously states, “there is no history of occupational noise exposure since the armed forces.” The RO denied the existence of this piece of relevant evidence when it nonetheless attributed the Veteran’s audiological disabilities to his occupation as a Wisconsin state patrolman. In short, at the time of the July 1981 rating decision, the only probative evidence addressing the etiology of the Veteran’s tinnitus and left ear hearing loss was the April 1981 VA examination report which attributed the disabilities to noise exposure. The RO incorrectly applied the statutory provisions at the time when it attributed the noise exposure referenced by the VA examiner to post-service noise, despite the fact that in-service noise exposure was affirmatively established and post-service noise exposure affirmatively was not. But for this error, a manifestly different outcome would have resulted. The Board thus finds CUE in the July 1981 rating decision with regard to the RO’s failure to award service connection for tinnitus and left ear hearing loss. As such, the decision is revised to reflect a grant of entitlement to service connection for tinnitus and left ear hearing loss. 2. The appeal of the claim for an effective date earlier than October 26, 2016 for the award of service connection for bilateral hearing loss is dismissed. 3. The appeal of the claim for an effective date earlier than October 26, 2016 for the award of service connection for tinnitus is dismissed. The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. During the January 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of the claims for effective dates earlier than October 26, 2016 for the awards of service connection for bilateral hearing loss and tinnitus. The undersigned explained that withdrawing the claims meant that they would be dismissed and would not be decided among the other claims in the present appeal. The Veteran, represented by the Veterans of Foreign Wars of the United States, confirmed his understanding of the impact of a dismissal and his desire to proceed with withdrawing the claims. The consequences of the withdrawals were thus fully understood. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claims for an effective date earlier than October 26, 2016 for the awards of service connection for bilateral hearing loss and tinnitus and they are dismissed. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.